Justice Watch: Foreclosure Attorneys Targeted In 3rd DCA Ruling

, Daily Business Review

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Leslie Rothenberg

After Miami foreclosure attorney Bruce Jacobs agreed to write an appellate brief for an ill colleague, he begged off making the oral argument before the Third District Court of Appeal in October.

Jacobs, who hosts "Debt Warriors with Bruce Jacobs" on WZAB, 880 AM The Biz, was smarting from an order to show cause issued by the appellate court earlier this year in another foreclosure case after a bank admitted not owning his client's mortgage the day before oral argument.

The Third DCA, though, ended up accusing him of making frivolous arguments and threatened sanctions but has yet to follow through. Then in the foreclosure case he took as a favor, Jacobs caught the appellate court's wrath again in a decision written by Judge Leslie B. Rothenberg.

She blamed the homeowners' appellate attorneys for "defending an indefensible appeal," cited "material misrepresentations" in the homeowners' motion for final judgment filed by trial attorney Robert Lithman and found fundamental error by Miami-Dade Circuit Judge Jose M. Rodriguez in an opinion issued Nov. 20.

Rothenberg also was one of the judges who filed the order to show cause against Jacobs. He now wonders if the Third DCA is singling out foreclosure defense attorneys for vigorously defending homeowners.

"In 18 years of practicing law, this is the first practice area I've ever felt any backlash for making good faith arguments," Jacobs said. "It's not just me. Other attorneys have faced threats of sanctions for making good faith arguments in foreclosure appeals."

Jacobs, who represented banks for years, said the foreclosure crisis could be resolved if banks gave meaningful modifications that let people stay in their homes.

"The dirty secret is that banks make more money when they foreclose. That is why the loan modification process is such a frustrating disaster. That is why it's so important to litigate these cases in court," Jacobs said. "And we know there has been massive fraud in these cases," he added, referring to the robo-signing scandal.

Lithman of Robert P. Lithman P.A. in Coral Gables, represented Mary Gamarra de Headley and Todd Headley of Miami Shores at trial and argued their appeal. He is at a loss to explain what compelled Rothenberg to question the ethics and professionalism of himself and Jacobs in the eight-page decision.

'Duty Of Candor'

"We also remind counsel for the Headleys of his duty of candor to the tribunal," Rothenberg wrote for the three-judge panel. "Not only did he file a misleading pleading, which led the trial court to err, he compounded the error by defending an indefensible appeal." Joining her on the unanimous opinion were Judges Ivan F. Fernandez and Thomas Logue.

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